[andyj]

Whale,

 

I completely agree. We did have the rollers replaced in the doors about 12 months ago. It did improve but not fix the rumbling noise for a wee while and then it got very bad again quite quickly. The “trades people” who did the job had to come back and redo one balcony door in the offending unit a week after the first fix up and then said that the doors were transmitting the noise through the wall void cavity and they could bairly hear the sliding door when using it in the upstairs unit but it sounded much worse underneath. I think they may be full of s… as the balcony slab likely forms part of the main floor slab and won’t have a air gap under the sliding door. As the building is 40 years old perhaps it is time to consider replacing the doors themselves. Mine run poorly and loudly as well, but I have the courtesy to recognize this and open them very gently and only during daylight hours. Time for the sinking fund I think. Then we will address any residual behavioral issues if necessary.

[andyj]

Struggler,

Such a shame that you have, after many years of strata living, been forced into this position. It is such a shame that you will be leaving strata and this forum. I too am considering giving up on strata. After a brief win over a timber floor issue. The current tenants have upped the ante and now are smashing any heavy object they can into the now carpeted floor at all hours. Like you its time for the white flag.

All the best my friend. It would be great if you could occasionally look at this forum and provide the great community that contribute here your immense wisdom

Cheers

 

andyj

[andyj]

Jimmy,

 

Some time ago you mentioned that an owner can be held liable for noise made by a legal occupant or tenant if they were aware that there were complaints being made to the SM.

 

I was looking at SSMA 1996 NSW s117

“

117     Owners, occupiers and other persons not to create nuisance

 

(1)     An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

(a)     use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b)    use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c)     use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

 

(2)     This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of:

(a)     in the case of a freehold strata scheme, section 28L of the Strata

Schemes (Freehold Development) Act 1973, or

(b)     in the case of a leasehold strata scheme, section 52 of the Strata

Schemes (Leasehold Development) Act 1986.

 

(3)     In this section, lessee of a lot in a strata leasehold scheme means a sublessee of the lot.”

Bold and italics my emphasis

Could this be interpreted that the owner is bound by the activities of the legal occupier re: s117 and could be held liable for their behavior

 

Could the legal interpretation of nuisance be described as “a condition or use of a property that interferes with a neighbors ability to enjoy their property” 

I welcome comments from our illustrious Scottish terrier and aquatic mammal (whale and scotlandx)

 

 

 

[andyj]

@JimmyT said:

@ccbaxter said:
I just read PMC2’s very good post on this again and renewed my curiosity as to why the two expert strata lawyers did PR releases on this. Maybe to stir things up. I really think they should put all their cards on the table here.

This is becoming tiresome.  If lawyers are in the habit of issuing press releases and newsletters about their field of interest (which both Teys and Makinson d’Apice do on a regular basis), why wouldn’t they issue some sort of statement about one of the most fundamental and far reaching legal decisions we’ve had in ages?  

There is no conspiracy. There is no ambulance chasing. If it hadn’t been for them telling us about it we would never have known (because the rest of the press certainly hasn’t said a peep).

Let it go – you are getting perilously close to trolling for reactions and I will not tolerate that on this website. Yellow card!

Unless we can have a mature discussion, time for a red card. This decision has some important outcomes for many……

Hmmmmmm andyj

 

[andyj]

Jimmy has made an extremely good point here. A breach of statutory duties under section 62 does not leave the Owners Corp open to legal action for damages. This is now clear!!!!

I would be delighted to see some discussion around the implications of this decision.

Does this leave an OC open to simply ignore its obligations under s62?. What powers does the CTTT have to ensure that an OC does undertake repairs and maintenance under s62 ie to repair/replace like with like.

Are older strata schemes open to be left to decay because of this

???

 

[andyj]

Hi PatriciaSC,

Don’t give up or sell out. You have the legal right, as do your tenants to “the peaceful enjoyment” of your lot. My particular Adjudication probably will not be of any particular use to you as each application for adjudication is unique. The arguments and evidence do however all follow the same pattern. You need to demonstrate to the adjudicator that there is not merely noise, but noise likely to disturb the peaceful enjoyment of your lot. What I am trying to get at here is that the noise is not occasional as can be expected in a strata lot, but that is repeated, intrusive, disturbing to a reasonable person. This is where your witnesses (pref a stat dec) come in. The more you can get the merrier. Also a noise log that states the dates, times what the noise was, what effect it  had on you, what you did about it and who can corroborate your evidence. The fact that the respondent has not played nicely over mediation is likely to reflect well in your favor. It lets the adjudicator get the feeling that they are unwilling to be reasonable and may have something to hide. Mention that in your application.

Jimmy T has provided some excellent references in his “Timber Floors, Facts and Frictions article” as well as some sample adjudications perhaps he can point you to the URL.

Another great resource is the http://www.austlii.edu.au law site link. Look for the CTTT section under NSW and do a Boolean search on by-law 14 and by-law 1. They are probably in breech of s117(1)(a) and possibly (c) of the SSMA 1996. you can find the strata schemes management act in a google search

When writing to the adjudicator. Keep your arguments clear, simple, factual and as devoid of emotion as you can. Simply state what has happened, the noise, its frequency and the impact it is having on you. Reference your supporting documents and state your diary notes were taken at the time of the incidents.

Hang in there you are well underway to a resolution

[andyj]

Hi PatriciaSC and drshelley,

Hang in there, the CTTT path can bear fruit. I have had the orders to fix the floor above reissued by the tribunal, however several weeks have now ticked by and the owner has been very quiet. He is rapidly running out of time to comply yet again.

 

As for acoustic testing. By-Law 14 is a subjective test whereby the tribunal determines whether the noise is “likely to disturb the peaceful enjoyment of a lot”. There is no mention in the by-law that I can see that refers to a “measure” or refers to the BSA standards. If  you get acoustic testing done it will be costly and can go in your favor, but may not. If the tribunal member takes the view that just meeting the BSA standards will satisfy By-Law 14 then you may have to put up with impact noise that is could be “clearly audible” and thereby may backfire on you. I would suggest getting Statutory declarations from as many visitors as you can attesting to the disturbing quality and frequency of the noise. Keep timely and detailed logs as well. This is what I did in the end and the tribunal issued orders to fix the issue if transmission of impact noise

 

Keep us all posted on how you go

 

Good luck!! 

[andyj]

@kiwipaul said:
Getting the SM to run the case can prove expensive, but they don’t have to any individual resident can DIY the case to CTTT (not NTC unless they have the approval of the EC) with the support of the EC or as a plaintiff themselves.

It’s not to difficult so long as you prepare and read all the online help files and documents. Also read previous CTTT ruling so you can see what is important and what is not.

Also make sure you have followed all the procedures as you don’t want it thrown out due to a procedural error. This brings the cost down to hundreds of $ instead of thousands and if you are doing it on behalf of the EC the EC cover the cost.

 

KP could you please point me in the direction of the “procedures” to be followed.

[andyj]

Jimmy, Whale,

 

Thank you, this is wonderful information. There was another gathering last night and it has been revealed that one of the offenders is an owner in an adjacent strata unit. Based on the information you have given me it looks like we can put pressure on the owners to behave, or where the lot is leased put pressure on their tenant (and the owner) to behave. I also touched base with the Department of Fair Trading and they informed me that even if there isn’t a formal lease in place the “occupier” is legally bound by the by-laws and strata laws whether they are, tenant, owner or otherwise.

Many thanks to you both from our neighborhood community!!!

[andyj]

Hi Gurus,

Some of the of neighboring strata blocks’ owners and tenants have approached some of the residents of our strata block to discuss “out of control tenants behavior”. In short there are a few residents of neighboring blocks (apparently ours included) who like to have loud parties and/or loud discussions on their balconies until sometimes day break. The question was asked “can we apply to someone to have these tenants warned and if the don’t settle down have them evicted”. My understanding is that we would have to have each EC issue NTC’s against the troublesome tenants/owners, do the CTTT mediation/adjudication etc., or apply for orders under the EPA.

Jimmy and others have mentioned that tenants that don’t obey by-laws can be evicted. I thought only an owner could have a tenant evicted. I get the strong feeling that some of the owners of these units don’t care or are absent interstate/overseas. Is there a way that an EC or other party can get an unruly tenant evicted and if so how?

 

[andyj]

@JimmyT said:

@drshelley said:
Can anyone tell me why when they install timber floors in new apartments there doesn’t seem to be any problem.

“We have timber floors – top of the line gear on 11mm insulation.  Imagine our shock when our downstairs neighbour told us “of course we can hear you!”

The thing is, we take our shoes off, we don’t run around or jump up and down. In other words, if you are  so keen to be a ‘go-ahead couple” modify your lifestyle and have little consideration for your neighbours.

Or, you should tell this selfish besom “go ahead … and move out.”

Hold the line, my friend.  They are in the wrong, you are in the right.

My compromise would be, since they have signalled that they have no intention of changing their behaviour, that you will let them put wall-to-wall carpet and underlay on top of the floorboards provided the promise never to remove it.

And pass this message on from the Flat Chat Crew:  Go-ahead couples in 2013 do their research and know that doing stuff on the cheap in strata never ever works.

“

Having read and contributed to the Flat-Chat forum with interest over the past 12 months or so, it would appear that the issue of timber floors and the noises they generate in strata complexes is a very common and often distressing topic.

Jimmy T mentions in his post that he was “shocked” when his down stairs neighbors mentioned that they could hear him and his significant others, despite his considerable efforts to ensure his timber floors were insulated to the highest degree possible. Jimmy says that they take of their shoes and don’t run/jump around in their apartment which shows consideration for the occupants of the apartments surrounding his.

Naturally when living in a strata complex one should expect some noise to be heard from surrounding apartments, however with efforts to adequately insulate floor spaces, and thoughtfulness and consideration toward fellow neighbors, this noise is not often disturbing or intrusive.

Unfortunately not all strata dwellers are as considerate as Jimmy. Owners often lay their timber floors with the bare minimum of acoustic insulation to save costs. This often means that the floor has a tendency to transmit a much greater level of noise that a quality carpeted floor or a timber floor that has been installed to the highest standards.

If the occupants of said apartments are willing to modify their behavior in a manner Jimmy has suggested then often the issue with floor noise can be avoided or minimized. These measures include, but are not limited to  laying quality  rugs in high traffic areas, taking off shoes, walking lightly over the surface, not dragging furniture around all day and settling children (or adults behaving like children) down at a reasonable hour in the evening. One also has to be aware that airborne noise is transmitted more easily by a poorly insulated floor space.

As is all too often that case the occupiers of strata apartments these days do not give a toss about their neighbors or the impact their activities may be having on them.

Even with well insulated floors, if the occupants want to skip rope at 2am, hold drunken parties or their kids play will all the subtlety of a military exercise then there will be noise issues.

The perfect storm occurs when you combine poor floor space acoustic insulation with “go-ahead” occupants who couldn’t care how much noise they are making and under no circumstances will modify their behavior.  

Almost invariably Professional Strata Managers will say its an issue between the owners and that they “don’t want to take sides” despite being reminded that they are responsible for ensuring by-laws are adhered to. Fellow neighbors will also tend to shrink into the shadows unless they too are directly affected by the noise pollution.

Notices to Comply are somewhat difficult to prepare as there are strict guidelines to follow and the penalties (if issued) have the deterrent effect of a smack on the hand with a wet bus ticket.

The CTTT track of mediation/adjudication/appeal is a long one and as mentioned by Jimmy and some of the other Strata Gurus can be a lottery as to the outcome.

Mediation often consists of the other party denying the existence of a noise problem supported protestations of their rights to do what they want in their apartments or frantic waving of documents from store brochures attesting to the sample acoustic performance of the floor and that it meets BCA standards.

In my case I offered for the owners brother to come and listen to the noise for himself (even the mediator thought this would be a good idea). Unfortunately the other party suddenly was “too busy to attend” and became hostile before frantically waving the installers brochures again. I noted with interest when they put in their submissions to the adjudicator that they claimed that they had been pleading with me for some time to come and witness the commotion caused by their floor.

Adjudication thankfully is relatively straight forward. Interested parties put their submissions in writing and then the adjudicator issues orders. If you have lined up your duck correctly by gathering evidence and witness statements, these orders will often be in your favor. It is worth noting that the adjudicator will issue orders that the “respondent” comply with the by-law, but not stipulate how (ie laying of carpet/replacement of acoustic underlay etc).

The next step of course is the appeal from the disgruntled floor owner. Here you may encounter lies, damn lies and statistics from the other party (eg accusations of harassment, attempts to blame other unit owners for their floor noise and more waving of irrelevant documents in way of proof). If you have continued evidence and witness statements of the noise problem you are likely to prevail again.

Sadly some floor owners wont end it here and will dig in their heels and go through many penalties processes until either you give up or the tribunal says that they have done enough to comply (even if they have in fact done nothing).

The final step is the district court or the supreme court. Here things get expensive, however “if” you win they will bear your costs.

It is sad that many people have to be dragged through this process that can take years to resolve at great emotional and often financial cost to the affected party

There are 4 ways to tackle noise problems in a strata unit

1 Notice to Comply path

2 CTTT mediation/adjudication/appeal/penalties path

3 NSW Protection of the Environment Operations Act

4 Civil action in the courts for breach of a covenant (the by-laws are a binding covenant on owners and tenants) asking for damages.

The last 2 are riskier if you lose (you bear the court costs) but carry more weight if you win (breach of court order is a criminal act)

 

It is a pity that when someone installs a floating timber floor that there are not mandatory tests that have to be performed by the installer to meet a certain standards (say 5-6 star rating).

andyj

 

 

 

 

  

 

 

[andyj]

Hmmm.. I received some paperwork from the CTTT today indicating that the applicant in the appeal had submitted some correspondence. Essentially he was saying that we had reached an agreement and that I wanted to have the tribunal issue them as orders. He is partially correct here. There was also a lot of calling the team members “honorable person” and saying how generous he is and how hard done by he is in agreeing to fix his floor. What  I have suggested that we agree on some orders to be issued by the tribunal. In short I have asked for the “removal of all the floorboards and the wall to wall laying of quality carpet and underlay, which is to be agreed to by both parties, so as to prevent the transmission of noise from the floor space likely to disturb the peaceful enjoyment of the owner or occupier of another lot in the strata scheme”. I have also asked that the work is completed within 42 days, to the satisfaction of myself and other lot occupants within 42 days of these orders coming into effect. On further rereading of the letter from the CTTT I noticed that he had had his appeal fees waived and they referred to a letter posted to him. When I rang the CTTT asking why he didn’t have to pay fees and why I didn’t get a copy of the correspondence to him I was told that essentially the communication didn’t affect any decisions and I was not privy to the letters or reasons for the fee waiver. Is this normal as he has been copied in on all correspondence between myself and the tribunal including what I have had for breakfast. I get the awful feeling of bias here…

 

Thoughts anyone

[andyj]

If you go down the path of mediation-adjudication-orders-appeal path (and the orders withstand the appeal) then drshelley then can apply for penalties for non-compliance with the orders handed down. It is worth noting there is almost always an appeal (or 2 in my case) from the dissatisfied side.

Once the appeals part is settled then you should expect the other party to comply. If they do not comply you can then apply for penalties. The application/award of penalties does NOT absolve the offender from complying with the orders, and in fact there are several CTTT cases where the person affected by the floor noise applied for penalties on subsequent occasions for continued non-compliance.

It is also worth noting that if the naughty non complier has not applied for a stay of the adjudicators orders during the appeal process than you can apply for penalties stating that the recalcitrant owner has not complied since the adjudicators orders took effect and ask for a bigger fine.

[andyj]

Hi drshelley,

Jimmy is right on the mark here. I have been battling atrocious timber floor noise from above for almost 2 years now. I can really empathise with your position. The irritation and sleep deprivation are a killer. I would go down the mediation and CTTT adjudication/orders path. It may take considerable time and it can be a frustrating process but you are likely to get a much better result. The threat of a $100-500 fine does little to dissuade a selfish owner. Multiple fines in excess of several thousand dollars is more of an incentive. Their statement that it meets BCA standards is just rubbish. I bet they have one of those acoustic reports that installers hand out like junk mail. They are of “no evidentiary value” to quote a recent adjudicators decision. Grab yourself a application for mediation form from fair trading and get the ball rolling. Keep ongoing detailed noise logs (start time, duration, type of noise, what you did, how it affected you) and get corroboration as my solicitor advised me. This involves getting witnesses to sign your noise log attesting to their experiences. Also get stat decs from visitors and neighbours. A united front in the strata scheme to stamp out this chancer from upstairs will yield results.

Ps ask then to supply the professional acoustic report for their floor (tap testing) in writing, if they decline it implies that they have something to hide.

Cheers

[andyj]

Hi Jimmy,

 

In your article under Timber Floors – facts and frictions you cite CTTT appeal 1 at the bottom of the article regarding SCS 07/63941 Strata Plan 30478

http://www.flatchat.com.au/timber-floors-facts-and-frictions/

 

I wish to use this in an upcoming penalties/appeal hearing next week but cannot find the case in http://www.auslii.edu.au

Can you point me to the database or URL that I can find the original CTTT ruling and cite it correctly

 

Ta

Brave in battle!!

andyj

[Author]

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